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Now that the Divisional Court has upheld Ontario’s renewable energy approval process, and the decisions of the Environmental Review Tribunal on concerns about adverse health effects, wind appeals are starting to settle.

The Tribunal has heard appeal after appeal against renewable energy approvals (REAs) for wind farms, many raising substantially the same health concerns (commonly concerns about noise, vibration, annoyance, flicker etc.) based on substantially the same evidence. The Tribunal has decided, over and over, that this evidence does not meet the statutory test, i.e. does not show that engaging in the Project in accordance with the REA will cause serious harm to human health. Accordingly, no Ontario REA has been struck down on the grounds of human health concerns.

Meanwhile, we hear that health concerns about wind turbines are lower in areas where the turbines are operating than in areas where they are merely proposed.

So it makes sense that some wind farm neighbours are deciding to settle their ERT appeals, rather than to incur the full legal costs of a hearing they are likely to lose.

For example, the Municipality of Clarington appealed a five turbine project on the grounds that it “will cause serious and irreversible harm to human health, plant life, animal life and the natural environment by interfering with accurate measurement of local winds and, as a direct result, causing and permitting the circulation and distribution of dust contaminated with radioactive material” from a neighbouring property being remediated by Canadian Nuclear Laboratories (“CNL”).

Clarington has now settled that appeal, in exchange for an anemometer from Clarington Wind, which the Municipality will operate on the lands to be remediated by CNL.

We hear that some landowners have also settled a health-claims-based appeal, on terms involving re-configuring the turbines to create a larger setback from their home. Withdrawal of this appeal has not yet been officially approved by the Tribunal, but hopefully they will welcome and encourage such settlements.

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